HISTORIC AND MODERN VIEW ON MARITAL RAPE

“Marital rape” refers to the rape of one spouse by the other. The frequency of marital rape is statistically significant: Studies have shown that between 10% and 15% of women have been raped by their husbands. Despite these numbers, husbands historically have not been prosecuted for marital rape.

The belated elimination of antiquated marital rape exceptions is a product of the persistence of traditional views of marital relationships and sexism.

Historic View

While it has generally been illegal at all times for a man to force sex upon a woman other than his wife, a husband could force sex upon his wife without violating the law until very recently. The justifications for this marital rape exception were:

  • the British common law view that the contract of marriage includes the husband’s “right to sex”—the wife having given consent for all time by entering the contract
  • the traditional view of wives as the property of their husbands with which they could do as they pleased under common law, and
  • the public interest in promoting privacy and harmony in marital relationships, which discouraged the state from interfering in the relationships.

An 1857 case in Massachusetts was the first in the U.S. to recognize the “contract” justification for the marital defense to rape. The “right” of a husband to sex with his wife also provided a husband with grounds for divorce if his wife refused sex. This defense became part of the rape laws in every state. The third justification posed the greatest hurdle to rescinding the marital rape exception, but the fundamental incoherence of the justification has undercut its sway. As the Supreme Court of Virginia has noted, it is “hard to imagine how charging a husband with the violent crime of rape can be more disruptive than the violent act itself.” (Weishaupt v. Commonwealth, 315 S.E.2nd 847 (Va. 1984).)

Modern View

The historic justifications for the marital rape exception have been largely discarded. However, there are several other justifications more recently proposed by those who continued to support the exception, including:

  • Marital rape did not happen often enough to merit rescinding the exception. This is a patently unsupportable point, given the percentage of wives who have experienced the crime,
  • The lack of a wife’s consent is too hard to prove because the spouses would have had consensual sex numerous times.
  • Other laws, such as assault and battery, provide a raped wife with avenues for recourse that are less fraught than bringing rape charges against her husband.
  • A husband should be able to have sex with his wife without fear of prosecution (which sounds a lot like the historic “husband’s right to sex” justification), and
  • Protecting the husband from false accusations of rape (for example, during divorce proceedings).

The one characteristic that all five of these justifications share is sexism, because all of them turn on a disbelief or discounting of the wife’s side of the equation and a promotion of the husband’s side over hers. In that sense, the “modern” justifications for a marital rape exception sound a lot like the historic justifications and are equally flawed. Just as damning, the marital rape exceptions gave fewer legal protections to women who were married to their assailants than to women who were raped by strangers, for no valid reason.

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